Moving US Embassy: What's the law?

BySally V. Mallison and W. Thomas Mallison, Dr. W. Thomas Mallison is professor of law and director of the International and Comparative Law Program at George Washington University, Washington, D.C. Mrs. Sally V. Mallison is research associate in that program.June 1, 1984

THE current proposals to move the United States Embassy from Tel Aviv to Jerusalem should be seen in the context of the applicable international and US constitutional law. The international law includes the customary law of military occupation, which was formulated in Hague Convention IV of 1907 and applied in the post-World War II war crimes cases, which consistently held that attempted annexation of occupied territory by the military occupant was illegal. For example, US v. Alstotter et al. (6 UN War Crimes Commission Reps. 1, 92, US Military Court, Nuremberg, 1947) held: ''The so-called annexed territories in Poland were in reality nothing more than territory under belligerent occupation of the military forces of Germany.'' This law was later codified in the Geneva Convention for the Protection of Civilian Persons (1949), Article 47 of which provides that any purported annexation is invalid. Israel, nevertheless, has enacted a law attempting to annex East Jerusalem.

All states are bound by the customary law of Hague Convention IV. This was established for Israel, although not a party to the convention, by the Israeli Supreme Court in the Elon Moreh case on Oct. 22, 1979. Both the US and Israel are parties to the Geneva Civilians Convention. The unanimous UN Security Council Resolution 242 of Nov. 22, 1967, must also be considered a part of the relevant international law. It reflects the obligations of customary international law and of the UN Charter by emphasizing the inadmissibility of the acquisition of territory by war.

As treaties of the US, both Hague Convention IV and the Civilians Convention are parts of the ''supreme law of the land'' under Article VI, Clause 2, of the US Constitution. The US also has a specific obligation to uphold the Civilians Convention under its Article 1 (a common article in all four of the 1949 Geneva Conventions), which requires contracting parties ''to ensure respect for the present Convention in all circumstances.'' If the US were to concur in the attempted Israeli annexation of East Jerusalem, it would be in violation of both the international and constitutional law. It is also relevant that Article II, Section 3, of the Constitution of the US places the entire recognition power in the Executive, with no participation by the Congress. Chief Justice John Marshall pointed out that the Executive is ''the sole organ of the nation in the conduct of foreign affairs.'' Consequently, any attempt by Congress to legislate moving the embassy would be unconstitutional as in violation of the exclusive powers of the Executive.

Finally, moving the US Embassy from Tel Aviv to Jerusalem would be widely interpreted as active support of, rather than mere acquiescence in, the Israeli violation of Hague Convention IV and the Civilians Convention. This would result in the destruction of any remaining credibility the US government possesses as an effective peacemaker in the Middle East. It is unfortunate that Americans who are self-appointed proponents of alleged Israeli interests are unwilling to admit, or to recognize, the existence of the conviction by an increasing number of Israelis that the real interest of Israelis, like that of other Middle East peoples, is peace under law rather than a perpetuation of the armed conflict, with increasing destruction of human and material values for all. The profound significance of Jerusalem to adherents of Judaism, Christianity, and Islam provides an opportunity for it to constitute a central element in Middle East peace, but only if the basic requirements of law are enforced.